01-004383RX Angelo`s Aggregate Materials, Ltd. vs. Suwannee River Water Management District Status: Closed DOAH Final Order on Friday, April 12, 2002.

Summary: Water Management District`s existing rules governing "works of district" do not constitute invalid exercise of delegated legislative authority. Petition is dismissed; Respondent`s request for attorney`s fees is denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANGELO'S AGGREGATE MATERIALS, )

LTD., )

)

Petitioner, )

)

vs. ) Case No. 01 - 4383RX

)

SUWANNEE RIVER WATER )

MANAGEMENT DISTRICT, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a formal hearing was held in this

case on January 10 and 28, 2002, in Live Oak, Florida, before

the Division of Administrative Hearings, by its designated

Administrative Law Judge, Barbara J. Staros.

APPEARANCES

For P etitioner: Daniel H. Thompson, Esquire

Berger, Davis & Singerman, P.A.

215 South Monroe Street

Suite 705

Tallahassee, Florida 32301

For Respondent: Bruce Robinson, Esquire

Brannon, Brown, Haley,

Robinson & Bulloc k, P.A.

Post Office Box 1029

Lake City, Florida 32056

STATEMENT OF THE ISSUE

Whether Rules 40B - 1.702(4); 40B - 4.1020(12) and (30);

40B - 4.1030; 40B - 4.1040(1)(b) and (c); 40B - 4.2030(4);

40B - 4.3000(1)(a); 40B - 4.3010; 40B - 4.3020; 4 0B - 4.3030; 40B -

4.3040; and 40B - 400.103(1)(h), Florida Administrative Code, of

the Suwannee River Water Management District, are an invalid

exercise of delegated legislative authority for reasons

described in the Second Amended Petition to Determine Validit y

of Rules.

PRELIMINARY STATEMENT

Petitioner, Angelo's Aggregate Materials, Inc.

(Angelo's), filed a Petition to Determine Validity of Existing

Rules with the Suwannee River Water Management District

(District) on or about November 13, 2001. The Petition was

forwarded to the Division of Administrative Hearings on

November 13, 2001, and was assigned to Lawrence P. Stevenson,

Administrative Law Judge.

By order dated November 13, 2001, this case was

consolidated for hearing with DOAH Case No. 01 - 4026RU. A

Motion to Change Venue was filed and by order dated November

27, 2001, venue was changed to Live Oak, Florida. The cases

were then reassigned to Administrative Law Judge Barbara J.

Staros. By agreement of the parties, the case was continued

until Janua ry 10, 2002.

Petitioner's motions to amend the Petition were granted

and the case proceeded under the Second Amended Petition to

Determine Validity of Existing Rules.

At hearing, Petitioner presented the testimony of two

witnesses, Dennis Price and Joh n Barnard. With the exception

of Exhibit 15, Petitioner's Exhibits 1 through 22, including

the deposition testimony of David Still, David Fisk, and Brett

Cunningham, were admitted into evidence. Exhibit 15 was

rejected.

Respondent presented the testimon y of three witnesses,

David Still, Brett Cunningham, and David Fisk. Respondent's

Exhibits 1 through 10, including the deposition testimony of

Dennis Price and John Barnard, were admitted into evidence.

The parties' request for official recognition of pe rtinent

rules of the Florida Administrative Code was granted. The

hearing had not concluded at the end of the day on January 10,

2002, so the continuation of the hearing was rescheduled for

January 28, 2002.

A Transcript consisting of three volumes was fi led on

February 11, 2002. The parties requested more than 10 days in

which to file Proposed Final Orders. That request was

granted. The parties timely filed Proposed Final Orders which

have been considered in the preparation of this Final Order.

While the cases were consolidated for hearing, separate final

orders have been prepared addressing the challenge to the

validity of existing rules and the challenge to alleged agency

statements.

FINDINGS OF FACT

Stipulated Facts

1. Angelo's is a Florida Limi ted Partnership, whose

address is 26400 Sherwood, Warren, Michigan 48091.

2. The District is an agency of the State of Florida

established under Chapter 373, Florida Statutes, with its

address at 9225 County Road 49, Live Oak, Florida 32060.

3. Angelo' s owns property in Hamilton County

approximately four miles to the east of Interstate 75 and to

the north of U.S. Highway 41, immediately to the east of the

Alapaha River.

4. Angelo's conducts commercial sand mining operations

on a portion of its prope rty pursuant to various agency

authorizations, including an Environmental Resource Permit

(ERP) issued by the Florida Department of Environmental

Protection (Department), Permit No. 158176 - 001, and a Special

Permit issued by Hamilton County, SP 98 - 3.

5. The ERP was issued by the Department pursuant to its

authority under Chapter 373, Part IV, Florida Statutes.

Angelo's mining operations constitute a "mining project" as

that term is used in Section II.A.1.e of an Operating

Agreement Concerning Regulation under Part IV, Chapter 373,

Florida Statutes, and Aquaculture General Permits under

Section 403.814, Florida Statutes, between the District and

the Department (Operating Agreement).

6. The Operating Agreement has been adopted as a

District rule pursuant to Rule 40B - 400.091, Florida

Administrative Code.

7. Angelo's has filed with the Department an application

to modify its ERP to expand its sand mining operations into an

area of its property immediately to the west of its current

operations (the "propose d expanded area"). Angelo's

application is being processed by the Department at this time.

8. Angelo's ERP modification application is being

processed by the Department under the Operating Agreement.

The District has asserted permitting jurisdiction ov er the

proposed expanded area because the proposed sand mining

activities would occur in what the District asserts to be the

floodway of the Alapaha. The District asserts that an ERP

would be required from the District so that the District can

address the work of the district (WOD) impacts.

9. Petitioner has not filed a permit application with

the District regarding the project. It is Petitioner's

position that to do so would be futile.

The Challenged Rules

10. The rules or portions thereof which are c hallenged

in this proceeding are as follows:

Rule 40B - 1.702(4), Florida Administrative Code, reads as

follows:

(4) A works of the district permit under

Chapter 40B - 4, F.A.C., must be obtained

prior to initiating any project as outlined

in (3) above within a regulatory floodway

as defined by the District.

Rule 40B - 4.1020(12) and (30), Florida Administrative

Code, read as follows:

(12) "Floodway" or 'regulatory floodway"

means the channel of a river, stream, or

other watercourse and adjacent land areas

that must be reserved in order to discharge

the 100 - year flood without cumulatively

increasing the 100 - year flood elevation

more than a designated height. Unless

otherwise noted, all regulatory floodways

in the Suwannee River Water Management

District pro vide for no more then one - foot

rise in surface water.

* * *

(30) "Work of the district" means those

projects and works including, but not

limited to, structures, impoundments,

wells, streams, and other watercourses,

together with the appurtenant fac ilities

and accompanying lands, which have been

officially adopted by the governing board

as works of the district. Works of the

district officially adopted by the board

are adopted by rule in Rule 40B - 4.3000 of

this chapter.

Rule 40B - 4.1030, Florida Adm inistrative Code, reads as

follows:

(1) The implementation dates of this

chapter are as follows:

(a) January 1, 1986 for Rule 40B -

4.1040(1)(a) which requires persons to

obtain surfacewater management permits.

(b) April 1, 1986 for Rule 40B -

4.1040(1)(b ) and Rule 40B - 4.3040 which

require persons to obtain works of the

district development permit if the proposed

development is in one of the following

areas adopted as a work of the district.

1. The Alapaha River and its floodway in

Hamilton County, Flori da;

2. The Aucilla River and its floodway in

Jefferson, Madison, or Taylor counties,

Florida;

3. The Suwannee River or its floodway in

Columbia, Hamilton, Lafayette, Madison, or

Suwannee counties, Florida; or

4. The Withlacoochee River and its

floodw ay in Hamilton or Madison counties,

Florida.

(c) July 1, 1986 for Rule 40B - 4.1040(1)(b)

or 40B - 4.3040 which require persons to

obtain work of the district development

permit if the proposed development is in

one of the following areas adopted as a

work o f the district.

1. The Santa Fe River and its floodway in

Alachua, Bradford, Columbia, Gilchrist,

Suwannee, or Union counties, Florida; or

2. The Suwannee River and its floodway in

Dixie, Gilchrist, or Levy counties,

Florida.

Rule 40B - 4.1040(1)(b) an d (c), Florida Administrative

Code, reads as follows:

(1) Permits are required as follows:

* * *

(b) Works of the district development

permit prior to connecting with, placing

structures or works in or across,

discharging to, or other development within

a work of the district.

(c) When the need to obtain a works of the

district development permit is in

conjunction with the requirements for

obtaining a surfacewater management permit,

application shall be made and shall be

considered by the distric t as part of the

request for a surfacewater management

permit application. Otherwise, a separate

works of the district development permit

must be obtained.

Rule 40B - 4.2030(4), Florida Administrative Code, reads as

follows:

(4) The new surfacewater manage ment

systems or individual works shall not

facilitate development in a work of the

district if such developments will have the

potential of reducing floodway conveyance .

(emphasis supplied)

Rule 40B - 4.3000(1)(a), Florida Administrative Code, reads

as fol lows:

(1) The governing board is authorized to

adopt and prescribe the manner in which

persons may connect with or make use of

works of the district pursuant to Section

373.085, Florida Statutes. Further,

Section 373.019(15) provides that works of

the d istrict may include streams and

accompanying lands as adopted by the

governing board. In order to implement the

non - structural flood control policy of the

district, the governing board finds it is

necessary to prevent any obstruction of the

free flow of w ater of rivers and streams

within the district. Therefore, the

governing board does hereby adopt the

following rivers and their accompanying

floodways as works of the district:

(a) The Alapaha River and its floodway in

Hamilton County, Florida; . . . .

Rule 40B - 4.3010, Florida Administrative Code, reads as

follows:

(1) A general works of the district

development permit may be granted pursuant

to the procedures in Rule 40B - 1.703 to any

person for the development described below:

(a) Construction of a structure for

single - family residential or agricultural

use including the leveling of land for the

foundation and associated private water

supply, wastewater disposal, and driveway

access which is in compliance with all

applicable ordinances or rules of lo cal

government, state, and federal agencies,

and which meets the requirements of this

chapter.

(2) A general permit issued pursuant to

this rule shall be subject to the

conditions in Rule 40B - 4.3030.

Rule 40B - 4.3020, Florida Administrative Code, reads a s

follows:

Content of Works of the District

Development Permit Applications.

(1) Applications for a general work of the

district development permit shall be filed

with the district and shall contain the

following:

(a) Form 40B - 4 - 5, "Application for Gen eral

Work of the District Development Permit,"

Suwannee River Water Management District,

4 - 1 - 86, hereby incorporated by reference

and which contains the following:

1. The applicant's name and complete

address including zip code;

2. The owner's name a nd complete address

if applicant is other than the owner;

3. If applicable, the name, complete

address, phone number, and contact person

of the applicant or owner;

4. Copies of all permits received from

local units of government, state, or

federal agen cies, specifically a copy of

the building or development permit issued

by the appropriate unit of local

government, including any variances issued

thereto, and a copy of the onsite sewage

disposal system permit issued by the

Florida Department of Health an d

Rehabilitative Services under Chapter 10D -

6, Florida Administrative Code;

5. A site plan to scale showing all

improvements, work, or works with any

conditions or limitations placed thereon;

and

6. Any supporting calculations, designs,

surveys, or app licable documents, which in

the applicant's opinion, may support the

application.

(2) Applications for individual or

conceptual approval works of the district

development permits shall be filed with the

district and shall contain the following:

(a) For m 40B - 4 - 4, "Application for

Surfacewater Management System

Construction, Alteration, Operation,

Maintenance, and/or Works of the District

Development", Suwannee River Water

Management District, 10 - 1 - 85, hereby

adopted by reference and which contains the

fo llowing:

1. The applicant's name and complete

address including zip code;

2. The owner's name and complete address

if applicant is other than the owner;

3. If applicable, the name, complete

address, phone number, and contact person

of the owner.

4. General project information including:

a. The applicant's project name or

identification number;

b. The project location relative to

county, section, township, and range, or a

metes and bounds description;

c. The total project area in acres;

d. Th e total land area owned or controlled

by the applicant or owner which is

contiguous with the project area;

e. A description of the scope of the

proposed project including the land uses to

be served;

f. A description of the proposed

surfacewater managem ent system or work;

g. A description of the water body or area

which will receive any proposed discharges

from the system; and

h. Anticipated beginning and ending date

of construction or alteration.

(3) Copies of all permits received from,

or applica tions made to, local units of

government, state, or federal agencies.

(4) A site plan to scale showing all

improvements, work, or works with any

conditions or limitations placed thereon.

(5) Any supporting calculations, designs,

surveys, or applicable legal documents,

which in the applicant's opinion, support

the application.

(6) Copies of engineer or surveyor

certifications required by this chapter.

Rule 40B - 4.3030, Florida Administrative Code, reads as

follows:

Conditions for Issuance of Works of t he

District Development Permits.

(1) The district will not approve the

issuance of separate permits for

development in a work of the district for

any proposed project that requires a

district surfacewater management permit

pursuant to Part II of this cha pter. For

such projects, development in a work of the

district may be authorized as part of any

surfacewater management permit issued.

(2) The district will not approve the

issuance of a works of the district

development permit for any work,

structures, road, or other facilities which

have the potential of individually or

cumulatively reducing floodway conveyance

or increasing water - surface elevations

above the 100 - year flood elevation, or

increasing soil erosion . The district will

presume such a facili ty will not reduce

conveyance or increase water - surface

elevations above the 100 - year flood

elevation or increase soil erosion if:

(a) Roads with public access are

constructed and laid out in conformance

with the minimum standards of local

government. W here roads are not required

to be paved, the applicant must provide

design specifications for erosion and

sediment control. Where roads are required

to be paved, swales will generally be

considered adequate for erosion and

sediment control;

(b) Building s in the floodway are elevated

on piles without the use of fill such that

the lowest structural member of the first

floor of the building is at an elevation at

least one foot above the 100 - year flood

elevation;

(c) The area below the first floor of

eleva ted buildings is left clear and

unobstructed except for the piles or

stairways;

(d) A permanent elevation monument is

established on the property to be developed

by a surveyor. The monument shall be

adequate to establish land surface and

minimum buildup elevations to the nearest

1/100 of a foot;

(e) No permanent fill or other

obstructions are placed above the natural

grade of the ground except for minor

obstructions which are less than or equal

to 100 square feet of the cross - sectional

area of the floo dway on any building or

other similar structure provided that all

such obstruction developed on any single

parcel of land after the implementation

date of this chapter is considered

cumulatively;

(f) No activities are proposed which would

result in the f illing or conversion of

wetlands.

(3) For any structure placed within a

floodway which, because of its proposed

design and method of construction, may, in

the opinion of the district, result in

obstruction of flows or increase in the

water surface elevat ion of the 100 - year

flood, the district may require as a

condition for issuance of a work of the

district development permit that an

engineer certify that such a structure will

not obstruct flows or increase 100 - year

flood elevations.

(4) The following c onditions shall apply

to all works of the district development

permits issued for development on lands

subdivided after January 1, 1985:

(a) Clearing of land shall be limited

[except as provided in (b) and (c) below]

to that necessary to remove diseased

vegetation, construct structures,

associated water supply, wastewater

disposal, and private driveway access

facilities, and no construction, additions

or reconstruction shall occur in the front

75 feet of an area immediately adjacent to

a water.

(b) Clea ring of vegetation within the

front 75 feet immediately adjacent to a

water shall be limited to that necessary to

gain access or remove diseased vegetation.

(c) Harvest or regeneration of timber or

agricultural crops shall not be limited

provided the ero sion of disturbed soils can

be controlled through the use of

appropriate best management practices, the

seasonal scheduling of such activities will

avoid work during times of high - flood

hazard, and the 75 feet immediately

adjacent to and including the norm ally

recognized bank of a water is left in its

natural state as a buffer strip.

(d) As to those lands subdivided prior to

January 1, 1985, the governing board shall,

in cases of extreme hardship, issue works

of the district development permits with

excep tions to the conditions listed in Rule

40B - 4.3030(4)(a) through (c).

(e) The 75 - foot setback in paragraphs (a)

through (d) above shall be considered a

minimum depth for an undisturbed buffer.

The limitations on disturbance and clearing

within the buffer as set out in paragraphs

(a) through (d) above shall apply, and any

runoff through the buffer shall be

maintained as unchannelized sheet flow.

The actual depth of the setback and buffer

for any land use other than single - family

residential development, a griculture, or

forestry shall be calculated in accordance

with the methodology in: "Urban Hydrology

for Small Watersheds", U.S. Department of

Agriculture, Soil Conservation Service,

Engineering Division, Technical Release 55,

June 1986; and, "Buffer Zone Study for

Suwannee River Water Management District",

Dames and Moore, September 8, 1988, such

that the post - development composite curve

number for any one - acre area within the

encroachment line does not exceed;

1. a value of 46 for areas within the

encro achment line with predominantly Class

A soils;

2. a value of 65 for areas within the

encroachment line with predominantly Class

B soils;

3. a value of 77 for areas within the

encroachment line with predominantly Class

C soils; or

4. a value of 82 for areas within the

encroachment line with predominantly Class

D soils. (emphasis supplied)

Rule 40B - 4.3040, Florida Administrative Code, reads as

follows:

Unlawful Use of Works of the District.

(1) It shall be unlawful to connect with,

place a structure in or across, or

otherwise cause development to occur in a

work of the district without a works of the

district development permit. The district

may use any remedy available to it under

Chapter 120 or 373, Florida Statutes, and

Chapter 40B - 1, Florida Adm inistrative Code,

to cause an unpermitted development to be

removed or permitted.

(2) It shall be unlawful for any permitted

use to violate the provisions of Chapter

373, Florida Statutes, or this chapter, or

the limiting conditions of a works of the

dis trict development permit. The district

may use any remedy available to it under

Chapter 120 or 373, Florida Statutes, and

Chapter 40B - 1, Florida Administrative Code,

to cause the unpermitted use to be removed

or brought into compliance with Chapter

373, F lorida Statutes, and this chapter.

(3) Damage to works of the district

resulting from violations specified in Rule

40B - 4.3040(1) and (2) above shall be

repaired by the violator to the

satisfaction of the district. In lieu of

making repairs, the violator may deposit

with the district a sufficient sum to

insure such repair.

Rule 40B - 400.103(1)(h), Florida Administrative Code,

reads as follows:

(1) In order to obtain a standard general,

individual, or conceptual approval permit

under this chapter or chap ter 40B - 4,

F.A.C., an applicant must provide

reasonable assurance that the construction,

alteration, operation, maintenance, removal

or abandonment of a surface water

management system:

* * *

(h) Will not cause adverse impacts to a

work of the Distr ict established pursuant

to s. 373.086. . . .

Facts Based Upon the Evidence of Record

History of the rules

11. Mr. David Fisk is Assistant Director of the

District. At the time of the hearing, he had been employed

there for 26 and one - half years. He p layed a significant role

in the rule adoption process of the rules that are the subject

of this dispute.

12. As part of that process, the District entered into a

consulting contract with an engineering, planning, and

consulting firm and consulted with t he U.S. Corps of Engineers

and the Federal Emergency Management Agency (FEMA), to conduct

what are described as the FEMA flood studies.

13. Additionally, the district commissioned an aerial

photography consultant who provided a series of rectified

ortho photographs of the entire floodplain of the rivers

within the District, and a surveying subcontractor who

provided vertical control and survey cross sections and

hydrographic surveys of the rivers. The District also worked

in conjunction with the United States Geological Survey to

accumulate all of the hydrologic record available on flooding.

The information was given to the U.S. Army Corps of Engineers

who, operating under FEMA guidelines for conducting flood

insurance rate studies, performed the analyt ical and computer

modeling work to identify the flood plains and floodway

boundaries.

14. The District used the amassed knowledge of maps,

cross sections and surveys that were developed as part of the

FEMA flood studies as technical evidence or support f or the

adoption of the works of the district rules.

15. Following a series of public workshops and public

hearings in 1985, the rules were adopted and became effective

in 1986. None of the rules were challenged in their proposed

state.

16. The District adopted the floodways of the Suwannee,

Santa Fe, Alapaha, Aucilla, and Withlacoochee Rivers as works

of the district. According to Mr. Fisk, the District adopted

the rules pursuant to Section 373.086, Florida Statutes, which

provided authority to the Dist rict to adopt district works and

Section 373.085, Florida Statutes, which provided authority to

regulate activities within those works.

The Floodway Line

17. Petitioner hired Mr. John Barnard, a professional

civil engineer, with extensive environmental permitting

experience, to look at the floodway and floodplain issues

associated with Petitioner's site and project. Mr. Barnard

conducted an engineering study entitled, "Floodplain

Evaluation." It was Mr. Barnard's opinion that FEMA's

determination of t he floodway line was less than precise. Mr.

Barnard used FEMA's data regarding the base flood elevation

but manually changed the encroachment factor resulting in his

placement of the floodway line in a different location than

determined by FEMA. Mr. Barn ard acknowledged that different

engineers using different encroachment factors would reach

different conclusions. 1/

18. Respondent's expert in hydrology and hydraulic

engineering, Brett Cunningham, noted that the definition of

floodway in Rule 40B - 4.1 020(12), Florida Administrative Code,

is essentially the same definition that used is in the FEMA

regulations and which also is commonly used across the country

in environmental rules and regulations. Mr. Barnard also

acknowledged that the District's defi nition of "floodway", as

found in Rule 40B - 4.1020(12), Florida Administrative Code, is

fairly commonly used by environmental regulatory agencies.

Moreover, it was Mr. Cunningham's opinion that the Alapaha

River is a stream or watercourse within the meanin g of the

rule and its floodway an accompanying land.

19. In Mr. Cunningham's opinion, the FEMA flood

insurance studies are widely used across the country for a

variety of reasons and are typically relied upon by

hydrologists and engineers to locate floodwa ys.

20. The definition of "works of the district" in

Rule 40B - 1020(30), Florida Administrative Code, is taken

directly from the language found in Section 373.019(23),

Florida Statutes. The statutory definition includes express

references to stream s and other watercourses, together with

the appurtenant facilities and accompanying lands.

21. Petitioner alleges that the phrase "will not cause

adverse impact to a work of the SRWMD" as found in Rule 40B -

400.103(1)(h) is not clear because it does not identify what

specific adverse impacts are being reviewed. While

Petitioner's expert, Mr. Price, was not clear as to what the

phrase means, Respondent's expert, Mr. Cunningham, understood

the meaning of the phrase and noted that "adverse impact" is a

phra se which is very commonplace in the rules and regulations

of environmental agencies and is attributed a commonsense

definition.

22. The expert engineers differed in their opinions as

to the meaning of the term "potential for reducing floodway

conveyance " as used in Rule 40B - 4.2030(4), Florida

Administrative Code. According to Petitioner's expert

engineer, Mr. Barnard, "potential for reducing floodway

conveyance" is not a specific term that is open to

interpretation as an engineer, and that he cannot qua ntify

what constitutes "potential." Respondent's expert,

Mr. Cunningham, understood the meaning of the phrase to be any

increase in floodway conveyance. It was his opinion that

there was nothing about that phrase to cause confusion.

23. Rule 40B - 4.30 30, Florida Administrative Code,

addresses conditions for issuance of works of the district

development permits. Petitioner's expert Mr. Price testified

that there is no quantification to what constitutes an

"increase in soil erosion" as referenced in sub section (2) and

linked the reference of soil erosion to a 100 - year flood event

referenced in the same subsection.

24. Mr. Cunningham was of the opinion that there is no

need to quantify an increase in soil erosion in the rule. He

noted that soil erosio n is used in a common sense manner and

that attempting to put a numerical limit on it is not

practical and "it's not something that's done anywhere

throughout the country. It's just not something that lends

itself to easy quantification like flood stages do".

25. Mr. Cunningham's opinion that the words and phrases

which Petitioner asserts are vague are words of common usage

and understanding to persons in the field is the more

persuasive testimony. This opinion is also consistent with

statutory construct ion used by courts which will be addressed

in the conclusions of law.

CONCLUSIONS OF LAW

26. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding pursuant to Section 120.56(1) and (3), Florida

Sta tutes.

27. Petitioner has proven that it has standing to

challenge the rules which are the subject of this dispute.

28. The party attacking an existing agency rule has the

burden to prove that the rule constitutes an invalid exercise

of delegated legisla tive authority. Cortes v. State Board of

Regents , 655 So. 2d 132 (Fla. 1st DCA 1995). The challenger's

burden is a stringent one. Id. ; Charity v. Florida State

University , 680 So. 2d 463 (Fla. 1st DCA 1996).

29. The Second Amended Petition to Determine Validity of

Existing Rules alleges that Rules 40B - 1.702(4); 40B - 4.1020(12)

and (30); 40B - 4.1030; 40B - 4.1040(1)(b) and (c); 40B - 4.2030(4);

40B - 4.3000(1)(a); 40B - 4.3010; 40B - 3020; 40B - 4.3030; 40B -

4.3040; and 40B - 400.103(1)(h), Florida Administrative Code,

a re an invalid exercise of delegated legislative authority

within the context of Section 120.52(8), Florida Statutes.

30. Petitioner asserts that the WOD rules are without

statutory authority in that the enabling statutes do not give

the District specifi c powers or duties to implement the WOD

rules; the District materially failed to follow the

applicable rulemaking procedures by using FEMA and other

sources without identifying the criteria or incorporating it

by reference; are vague, fail to establish ad equate standards

for agency decisions, or vest unbridled discretion in the

District; are arbitrary or capricious, are not supported by

competent substantial evidence, and impose regulatory costs

that could be reduced by the adoption of less costly

alternat ives that substantially accomplish the statutory

objectives.

31. While Petitioner argues that as a whole the WOD

rules are an invalid exercise of delegated legislative

authority, Petitioner focuses on certain rules or portions of

rules as grounds for the a lleged invalidity of the existing

rules.

32. Petitioner asserts that the following words and

phrases are vague and arbitrary: the definition of "floodway"

in Rule 40B - 4.1020(12); the definition of "work of the

district" in

Rule 40B - 4.1020(30); the phras e "potential of reducing

floodway conveyance" in Rule 40B - 4.2030(4); and the phrase

"will not cause adverse impact to a work of the SRWMD" in Rule

40B - 400.103(1)(h), Florida Administrative Code.

33. Petitioner asserts that the definitions of

"floodway" and "works of the district" exceed the grant of

rulemaking authority, enlarge, modify, or contravene the

specific provisions of law implemented; fail to establish

adequate standards for agency decisions, and/or vests

unbridled discretion in the District, o r are arbitrary or

capricious.

34. Further, Petitioner asserts that there is no

quantification in Rule 40B - 4.3030(2), Florida Administrative

Code, as to how the prohibition of "reducing soil erosion"

applies to determining whether or not an activity is

pe rmittable within a WOD; and that there are no clear

criteria, standards, or guidance in the WOD rules for

demonstrating compliance with the rules resulting in the

District having unbridled discretion.

35. Section 120.52(8), Florida Statutes, reads as

fo llows:

(8) "Invalid exercise of delegated

legislative authority" means action which

goes beyond the powers, functions, and

duties delegated by the Legislature. A

proposed or existing rule is an invalid

exercise of delegated legislative authority

if any o ne of the following applies:

(a) The agency has materially failed to

follow the applicable rulemaking procedures

or requirements set forth in this chapter;

(b) The agency has exceeded its grant of

rulemaking authority, citation to which is

required by s. 120.54(3)(a)1.;

(c) The rule enlarges, modifies, or

contravenes the specific provisions of law

implemented, citation to which is required

by s. 120.54(3)(a)1.;

(d) The rule is vague, fails to establish

adequate standards for agency decisions, or

ves ts unbridled discretion in the agency;

(e) The rule is arbitrary or capricious;

(f) The rule is not supported by competent

substantial evidence; or

(g) The rule imposes regulatory costs on

the regulated person, county, or city which

could be reduced by the adoption of less

costly alternatives that substantially

accomplish the statutory objectives.

36. Section 373.044, Florida Statutes, reads as follows:

Rules; enforcement; availability of

personnel rules. – -

The governing board of the district is

aut horized to adopt rules pursuant to

ss. 120.536(1) and 120.54 to implement the

provisions of this chapter. Rules and

orders may be enforced by mandatory

injunction or other appropriate action in

the courts of the state. Rules relating to

personnel m atters shall be made available

to the public and affected persons at no

more than cost but need not be published in

the Florida Administrative Code or the

Florida Administrative Weekly.

37. Section 373.113, Florida Statutes, reads as follows:

Adoption of rules by the governing board. – -

In administering the provisions of this

chapter the governing board has authority

to adopt rules pursuant to ss. 120.536(1)

and 120.54 to implement provisions of law

conferring powers or duties upon it.

38. Section 373.17 1, Florida Statutes, reads as follows:

(1) In order to obtain the most beneficial

use of the water resources of the state and

to protect the public health, safety, and

welfare and the interests of the water

users affected, governing boards, by action

not inconsistent with the other provisions

of this law and without impairing property

rights, may:

(a) Adopt rules or issue orders affecting

the use of water, as conditions warrant,

and forbidding the construction of new

diversion facilities or wells, the

in itiation of new water uses, or the

modification of any existing uses,

diversion facilities, or storage facilities

within the affected area.

(b) Regulate the use of water within the

affected area by apportioning, limiting, or

rotating uses of water or by preventing

those uses which the governing board finds

have ceased to be reasonable or beneficial.

(c) Issue orders and adopt rules pursuant

to ss. 120.536(1) and 120.54 to implement

the provisions of this chapter.

(2) In adopting rules and issuing orde rs

under this law, the governing board shall

act with a view to full protection of the

existing rights to water in this state

insofar as is consistent with the purpose

of this law.

(3) No rule or order shall require any

modification of existing use or di sposition

of water in the district unless it is shown

that the use or disposition proposed to be

modified is detrimental to other water

users or to the water resources of the

state.

(4) All rules adopted by the governing

board shall be filed with the Dep artment of

State as provided in chapter 120. An

information copy will be filed with the

Department of Environmental Protection.

39. Section 373.019(23), Florida Statutes, reads as

follows:

(23) "Works of the district" means those

projects and works, inc luding, but not

limited to, structures, impoundments,

wells, streams, and other watercourses,

together with the appurtenant facilities

and accompanying lands, which have been

officially adopted by the governing board

of the district as works of the distric t.

40. Section 373.085, Florida Statutes, reads as follows:

Use of works or land by other districts or

private persons. – -

(1) The governing board has authority to

prescribe the manner in which local works

provided by other districts or by private

person s will connect with and make use of

the works or land of the district, to issue

permits therefor, and to cancel the permits

for noncompliance with the conditions

thereof or for other cause. It is unlawful

to connect with or make use of the works or

land o f the district without consent in

writing from its governing board, and the

board has authority to prevent or, if done,

estop or terminate the same. The use of

the works or land of the district for

access is governed by this section and is

not subject to the provisions of s. 704.01.

However, any land or works of the district

which have historically been used for

public access to the ocean by means of the

North New River Canal and its tributaries

may not be closed for this purpose unless

the district can d emonstrate that

significant harm to the resource would

result from such public use.

(2) Damage resulting from unlawful use of

such works, or from violations of the

conditions of permit issued by the board

shall, if made by other than a public

agency, be subject to such penalty as is or

may be prescribed by law and in addition

thereto by a date and in a manner

prescribed by the board, repair of said

damage to the satisfaction of said board,

or deposit with said board a sum sufficient

therefor, and if by a public agency, then

at the expense of such agency the repair of

said damage to the satisfaction of the

board or the deposit with said board of a

sum sufficient therefor.

41. Section 373.086, Florida Statutes, provides in

pertinent part:

PROVIDING FOR DIS TRICT WORKS . – -

(1) In order to carry out the works for

the district, and for effectuating the

purposes of this chapter, the governing

board is authorized to clean out,

straighten, enlarge, or change the course

of any waterway, natural or artificial,

with in or without the district; to provide

such canals, levees, dikes, dams,

sluiceways, reservoirs, holding basins,

floodways, pumping stations, bridges,

highways, and other works and facilities

which the board may deem necessary; to

establish, maintain, and regulate water

levels in all canals, lakes, rivers,

channels, reservoirs, streams, or other

bodies of water owned or maintained by the

district; to cross any highway or railway

with works of the district and to hold,

control, and acquire by donation, lease , or

purchase, or to condemn any land, public or

private, needed for rights - of - way or other

purposes, and may remove any building or

other obstruction necessary for the

construction, maintenance, and operation of

the works; and to hold and have full

contro l over the works and rights - of - way of

the district.

(2) The works of the district shall be

those adopted by the governing board of the

district. The district may require or take

over for operation and maintenance such

works of other districts as the gov erning

board may deem advisable under agreement

with such districts.

Rule Challenge Analysis

Section 120.52(8)(a), Florida Statutes

42. Petitioner alleges that the agency has materially

failed to follow the applicable rulemaking authority by using

crit eria from FEMA and other sources without identifying the

criteria or incorporating any of it by reference. In the

context of an analysis of the procedural requirements of

rulemaking, it is not necessary for the agency to incorporate

the informational sour ce by reference.

43. The rules in question were adopted over 20 years

ago. The foregoing findings of fact outline the process used

by the Board in its rule adoption. There is no competent

evidence in the record that Respondent failed to follow the

appl icable rulemaking procedures that existed at the time of

the rule adoption.

Section 120.52(8)(b)and (c), Florida Statutes

44. Petitioner asserts that the District's definitions

of "floodway" and "works of the district" as found in Rule

40B - 4.1020 (12) and (30), Florida Administrative Code, exceed

its rulemaking authority and enlarge, modify or contravene the

specific law implemented in violation of Section 120.52(8)(b)

and (c), Florida Statutes. 2/

45. Petitioner asserts in its Proposed Final Orde r that

Rule 40B - 4.3000, which identifies the works of the district,

is invalid because the agency has exceeded its grant of

rulemaking authority and the rule enlarges, modifies, or

contravenes the specific provisions of law implemented. 3/

46. Section 3 73.044, Florida Statutes, authorizes the

governing board of directors of the District to adopt rules to

implement the provisions of Chapter 373, Florida Statutes.

Section 373.171(1), Florida Statutes, contains similar

language. Section 373.113, Florida S tatutes, grants authority

to the governing board of the District to adopt rules to

implement provisions of law conferring powers or duties upon

it.

47. Section 373.086(1), Florida Statutes, grants broad

authority to the District in regulating its works of the

district, includes a specific reference to providing such

"floodways" which the board may deem necessary, and gives

"full control" over the works of the district to the governing

board of the water management district. Section 373.085,

Florida Sta tutes, authorizes the governing board of water

management districts to prescribe the manner in which local

works provided by other districts or by private persons will

connect with and make use of the works or land of the

District.

48. Section 373.086(2), Florida Statutes, confers powers

and duties on the governing board of the District and states

that the works of the district shall be those adopted by the

governing board of the district. Moreover, the definition of

"work of the district" in Rule 40B - 4.1 020(30), Florida

Administrative Code, is taken directly from the language found

in Section 373.019(23), Florida Statutes.

49. "The authority to adopt an administrative rule must

be based on an explicit power or duty identified in the

enabling statute . . . [T]he authority for an administrative

rule is not a matter of degree. The question is whether the

statute contains a specific grant of legislative authority for

the rule, not whether the grant of authority is specific

enough ." Florida Board of Medicin e, et al., v. Florida

Academy of Cosmetic Surgery, Inc., et al. , (emphasis in

original)(27 Fla.L.Weekly D230), quoting Southwest Florida

Water Management District v. Save the Manatee Club, Inc. , 773

So. 2d 594, 599 (Fla. 1st DCA 2000). 4/

50. Based u pon the statutory authority outlined above,

the District has not exceeded its grant of rulemaking

authority and the challenged rules do not enlarge, modify, or

contravene the specific provisions of law implemented.

Further, the challenged rules implement or interpret the

specific powers and duties granted by the enabling statute.

Section 120.52(8)(d) and (e), Florida Statutes

51. Petitioner alleges that the entire body of WOD rules

is vague, fails to establish adequate standards for agency

decisions, o r vests unbridled discretion in the agency.

52. In particular, Petitioner asserts vagueness

regarding the above referenced definition of "floodway,"

describing the definition of floodway as "too vague for a

person using standard engineering practices to determine the

location of the floodway within the District's WOD." 5/

53. The evidence suggests otherwise. The definition of

"floodway" in Rule 40B - 4.1020(12) is essentially the same

definition that is used in the FEMA regulations and that

definition is commonly used across the country in

environmental rules and regulations.

54. Petitioner asserts that the phrase "potential of

reducing floodway conveyance" in Rule 40B - 4.2030(4), Florida

Administrative Code, is vague and arbitrary in that one cannot

qua ntify what constitutes "potential." The word "potential"

has a plain and ordinary meaning: "existing in possibility:

capable of development into actuality." Webster's Ninth New

Collegiate Dictionary .

55. Petitioner asserts that the phrase "will not cau se

adverse impact" in Rule 40B - 400.103(1)(h), Florida

Administrative Code, is vague and arbitrary. As established

in the findings of fact, the phrase "adverse impact" is

commonly used in the rules and regulations of environmental

agencies. 6/

56. An adm inistrative rule is invalid if the rule

requires the performance of an act in terms that are so vague

that persons of common intelligence must guess at its meaning.

Southwest Florida Water Management District v. Charlotte

County , 774 So. 2d 903 (Fla. 2nd DCA 2001), citing Donato v.

American Telephone & Telegraph , 767 So. 2d 1146 (Fla. 2000).

57. Where the legislature has not defined words or

phrases, they must be construed in accordance with their

common and ordinary meaning. "The words in a statute mu st be

construed according to their plain and ordinary meaning, or

according to the meaning assigned to the terms by the class of

persons within the purview of the statute." Southwest Florida

Water Management District v. Charlotte County , supra , citing

Flo rida East Coast Industries v. Department of Community

Affairs , 677 So. 2d 357 (Fla. 1st DCA 1999).

58. The words "floodway," "potential," and "adverse

impact," are commonly used and understood by the class of

persons within the purview of the District's e nabling

statutes. Moreover, "soil erosion" is used in the context of

the rule in a common sense manner which does not necessitate

putting a numerical limit on it.

59. Petitioner further asserts that there are

insufficient criteria and standards in Rule 40B - 3030(2) and

(3), Florida Administrative Code, which addresses conditions

for issuance of works of the district, resulting in the

district having unbridled discretion.

60. Sections 373.085 and 373.086, Florida Statutes, give

the District broad author ity to provide for, adopt, and

regulate activities of works of the district. The WOD rules

implement the powers and duties conferred upon the District by

the Legislature. "The Legislature itself is hardly suited to

anticipate the endless variety of situa tions that may occur or

to rigidly prescribe the conditions or solutions to the often

fact - specific situations that arise." Avatar Development

Corp. v. State , 723 So. 2d 199 (Fla. 1998).

61. The language of the challenged rules is not vague,

and u ses words and phrases commonly used by persons dealing

with environmental regulatory agencies. The language of the

challenged rules does not fail to establish adequate standards

for agency decisions or vest unbridled discretion in the

agency. See Humhosc o, Inc. v. Department of Health and

Rehabilitative Services , 476 So. 2d 258, 261 (Fla. 1st DCA

1985); and Southwest Florida Water Management District v.

Charlote County , supra .

62. "A rule is 'arbitrary' if it is not supported by

facts or logic, and 'c apricious' only if it is irrational."

Florida Board of Medicine v. Florida Academy , supra , at 18,

citing Board of Clinical Laboratory Pers. v. Florida Assn. Of

Blood Banks , 721 So. 2d 317, 318 (Fla. 1st DCA 1998).

63. As established in the findings of fact, the

challenged rules are supported by facts and logic. The

challenged rules are rational. Based upon the evidence

presented, the language of the challenged rules is not

arbitrary or capricious.

Section 120.52(8)(f), Florida Statutes

64. Petitione r alleges that the WOD rules are not

supported by competent substantial evidence. The scope of

review in this proceeding is limited to whether legally

sufficient evidence exists to support the rules. An

Administrative Law Judge may not independently rewe igh the

evidence, assess the credibility of, or substitute judgment

regarding the wisdom of the rules. Florida Board of Medicine,

et al., v. Florida Academy of Cosmetic Surgery, Inc.; et al. ,

supra . Based upon the evidence of record, legally sufficient

e vidence exists to support all of the WOD rules. Accordingly,

the WOD rules are supported by competent substantial evidence.

Section 120.52(8)(g), Florida Statutes

65. Petitioner asserts that the WOD rules impose

regulatory costs on the regulated pers on, county, or city

which could be reduced by the adoption of less costly

alternatives that substantially accomplish the statutory

objectives. Subsection (g) of Section 120.52(8) was added

in 1996 and was not in existence in 1985 when the subject

rule s were adopted. A general rule of statutory construction

is that a substantive statute will not operate retrospectively

absent clear legislative intent to the contrary. State Farm

Mutual Auto Insurance v. Laforet , 658 So. 2d 55, 61 (Fla.

1995). 7/ There is nothing in the Second Amended Petition

which raises a concern that the District did not comply with

the requirements that existed at the time of adoption

regarding economic impact.

66. Finally, Petitioner challenges the validity of the

WOD rules as applied. Those arguments will not be addressed

in this order as that is beyond the scope of this proceeding.

The fact that as agency may erroneously or wrongfully apply a

rule does not invalidate the rule. The remedy for an

erroneous application of a ru le is a proceeding under Section

120.57(1), Florida Statutes. 8/ Hasper v. Department of

Administration , 459 So. 2d 398 (Fla. 1st DCA 1984).

ORDER

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

ORDERED:

1. The Second Amended Peti tion to Determine Validity of

Existing Rules is dismissed.

2. Respondent's request for attorney's fees pursuant to

Section 120.595, Florida Statutes, is denied.

DONE AND ORDERED this 12th day of April, 2002, in

Tallahassee, Leon County, Florida.

_________ __________________________

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state. fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of April, 2002.

ENDNOTES

1/ A more detailed analysis of Mr. Barnard's methodology and

conclusion will not be addressed here. Whether there is an

alternative method or even a better method than that chosen by

the District does not matter in a facial challenge to the

validity of an existing rule. State Department of Health and

Rehabilitative Services v Framat Realty , 407 So. 2d 238 (Fla.

1st DCA 1981).

2/ Petitioner's vagueness argument focused more on the

definition of "floodway". While the Second Amended Petition

to Determine Validity of Rules alleged the definition of

"works of the district" was vague, Petitioner's primary

argument was that the definition of "works of the district"

had no statutory authority.

3/ While the Second Amended Petition to Determine Invalidity

of Existing Rules enumerates Rule 40B - 4.3000 as part of the

rule validity challenge, the ground that this rule violates

(b) and (c) was not clear ly alleged. In any event, the

district has the statutory authority to adopt the Alapaha

River as a work of the district.

4/ The Court in Florida Board of Medicine , supra , discussed

the requirements of the "flush left" language of Section

120.52(8), Flor ida Statutes, in conjunction with its analysis

of subsections (b)and (c). Accordingly, that analysis is

utilized here.

5/ The Second Amended Petition alleges that the definition of

"works of the district" is also vague, fails to establish

adequate sta ndards for agency decisions or vests unbridled

discretion in the agency. However, in its Proposed Final

Order, Petitioner focuses on subsections (b) and (c) of

Section 120.52(8) as the basis of its argument regarding the

invalidity of the definition of "w orks of the district".

6/ While the Second Amended Petition to Determine Validity of

Rules alleged the definition of "works of the district" is

vague, Petitioner's primary argument is that "works of the

district" has no statutory authority and is, acc ordingly,

discussed under that criterion.

7/ Compare to section 9, Chapter 96 - 159, Laws of Florida,

which required agencies to identify each rule or portions

thereof which exceeded the rulemaking authority of the flush

left language of Section 102.52(8) , Florida Statutes.

Accordingly, the analysis of the rules herein regarding

specific legislative authority was made under the "new"

standard, not the one in existence at the time the rules were

adopted.

8/ This is not a finding that the District err oneously or

wrongfully applied its WOD rules to Petitioner or to anyone

else.

COPIES FURNISHED :

Bruce W. Robinson, Esquire

Brannon, Brown, Haley,

Robinson & Bullock, P.A.

Post Office Box 1029

Lake City, Florida 32056

Daniel H. Thompson, Esquir e

Berger, Davis & Singerman, P.A.

215 South Monroe Street

Suite 705

Tallahassee, Florida 32301

Jerry Scarborough, Executive Director

Suwannee River Water Management District

9225 County Road 49

Live Oak, Florida 32060

Carroll Webb, Executive Director

J oint Administrative Procedures Committee

120 Holland Building

Tallahassee, Florida 32399 - 1300

Liz Cloud, Chief

Bureau of Administrative Code

The Elliot Building

Tallahassee, Florida 32399 - 0250

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who i s adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68,

Florida Statutes. Review proceedings are governed by the

Florida Rules of Appellate Procedure. Such proceedings are

commenced by filing the original notic e of appeal with the

Clerk of the Division of Administrative Hearings and a copy,

accompanied by filing fees prescribed by law, with the

District Court of Appeal, First District, or with the District

Court of Appeal in the Appellate District where the part y

resides. The notice of appeal must be filed within 30 days of

rendition of the order to be reviewed.